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State v Kumar - Ruling on no case to answer [2014] FJMC 52; Criminal Case 269.2012 (31 March 2014)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 269/12

BETWEEN:

STATE

AND:

ARUN KUMAR

Prosecution: PC Nitesh
Accused: Mr AK Narayan (AK Lawyers)

Ruling on No Case To Answer

Background

1. The accused person was charged for the offence of Cultivation of an Illicit Drug contrary to section 5(b) of the Drugs Control Act 2004.
   
2. The particulars of the offence were as follows:
   

Arun Kumar on the 11th day of November 2011 at Tavua in the Western Division without lawful authority cultivated 11 plants weighed at 400 grams of cannabis sativa or Indian hemp an illicit drug.

3. The accused pleaded not guilty and matter proceeded for hearing. Prosecution called 6 witnesses to prove their case. At the completion of prosecution case defendant counsel made an application for no case to answer.
   

Evidence

4. I now briefly consider salient features of the evidence adduced by prosecution during the hearing.
   
5. PW1 - Cpl Epineri Moceidreke

On 11/11/11 was at Tavua Police Station when they received information that one Arun Kumar planting marijuana. Arun is accused. They discussed with colleagues and a warrant was prepared. They went to accused house with Sgt Tuvura, Cpl Eremasi, PC Ajnesh and himself. They arrive at accused home after School. Accused, his wife, son and daughter were present. Sgt Tuvura showed accused search warrant and explained reason of their visit. They then searched the premises. He saw accused son walking towards their garden. He followed son who had cane knife and was about to chop plants when he instructed him to go away from the garden. They all went to the garden and uprooted plants believed to be marijuana. They uprooted 11 plants some taller than him and of various sizes and some also in pot plants. Garden is situated about 5 meters from accused house and in same compound. Accused was then taken to the station with the plants. He identified some plants in court.

In cross-examination stated that he can't recall how many plants in pots. He stated that there are 4 plants in plastic identified in court and doesn't know where other plants have gone. He doesn't know where pot plants have gone. He agrees that the plants shown to court are cut and doesn't know who cut them. He stated that he can't identify the plants.

6. PW2 – Sgt Aminiasi Tuvura

He confirmed that in November 2011 was at Tavua Police Station when they received information that Arun Kumar a farmer of Yasiyasi was cultivating Indian hemp. Arun Kumar is the accused. Search warrant prepared and team of officers went (Cpl Eremasi, Cpl Epineri, PC Ajnesh and himself) to accused place at Yasiyasi. They met accused and explained everything to him as to purpose of visit and search warrant. Accused, his wife, daughter and son were present. They searched the compound and found plants believed to be Indian hemp planted in garden in compound of accused. Garden is 10 meters from accused house. Some plants were planted in empty buckets and others in soil. Plants were about 2 meters tall. They uprooted plants and brought the same to police station. Identifies some plants in court and stated that the plants and accused were handed over to PC Kamenieli.

In cross examination he stated that they uprooted 11 plants from accused garden. He can't recall how many buckets there were or how many plants in bucket. He stated that reason he can identify plants is because they are exhibits. He doesn't know where 7 plants and the buckets are. He doesn't know who cut the plants.

7. PW3 – Cpl Eremasi Naraga

He was instructed on 11/11/11 to prepare search warrant. Shown document and identifies the same (exhibit 1 & 2). They went to search Arun Kumar's house. Arun Kumar is accused. Accused led them to his garden and they noted some marijuana plants in garden. The plants were about 1 ½ meters long and some plants in pot plants and some in soil. Accused never said anything about the plants. They uprooted 11 plants and they brought plants and accused to police station. Tendered search list (exhibit 3). The alleged drugs and accused were handed to PC Kamenieli.

In cross examination stated that pot plants were given to the I.O. He can't recall how many plants or pot plants were there. He confirmed that in statement he stated there were 8 plants of marijuana. What he stated in statement is a mistake. He didn't cut the alleged plants and neither did he physically count the plants.

8. PW4 – Cpl Sheik Khan

He recalls that on 15/2/12 at Tavua Police Station he handed over to PC Nasova some plastics and pot plants. PC Kamenieli handed him the items and he handed over the items to PC Nasova. Items wrapped in garbage bag plastic. Items were sealed that time.

In cross examination stated that on 15/11/11 he handed items to PC Nasova. He never saw the items before that.

9. PW5 – PC Etuate Nasova

He came to Tavua Police Station on 15/2/12 as he was instructed to pick drugs and take them to Koronivia. He was handed certain exhibits by Cpl Sheik and exhibits wrapped in black plastic. Exhibits were to be taken to Koronivia for analysis. At Koronivia at 1313hrs, he handed exhibit to one taukei named Wise. At 1600hrs he picked the items and brought them back and handed them over to PC Ronald at Tavua Police Station. There was no tampering of parcel as it was under his custody all the time.

In cross examination he stated that he can't exactly recall the date he collected the exhibits from Cpl Sheik. Cpl Sheik gave him parcel and pot plants. The pot plants were taken to Koronivia and brought back. He can't recall the number of pot plants and never seen them again. He can't recall the number of plants in pots and the parcels were wrapped in plastic. He didn't look inside contents of plastic. At Koronivia he handed the items to one Wise and collected the same items from him.

10. PW6 – Ex PC Ronald Chand

On 15/2/12 was on duty at Tavua Police Station and at 2030hrs he received exhibit from PC Etuate and he handed over the same exhibit to PC Kamenieli. He didn't tamper with exhibits. He didn't open exhibits. He was told by PC Etuate that it was exhibit returned from Koronivia. Items were wrapped nicely and handed over to him.

In cross examination he stated that he received parcel and government analyst report from PC Etuate and he handed over the same to PC Kamenieli
Issue

11. Whether there is no case to answer for accused person?
    

Law/Analysis

12. Section 178 of the Criminal Procedure Decree states that "if at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused."
    
13. In the case of State v Mahend Prasad HAA 019 of 2008, at paragraph 17, the Court had this to say when dealing with the issue of case to answer "...The test to be applied in the Magistrates Court, was explained in Abdul Ghani Sahib v The State [2005] FJHC 95; HAA 0022 of 2005; 28 April 2005, as:
    

'In the Magistrates Court, both tests apply. So the Magistrate must ask himself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and second whether the prosecution evidence, taken at it's highest, a reasonable tribunal could convict. In considering the prosecution at its highest, a reasonable tribunal could convict. In considering the prosecution case, taken at its highest, there can be no doubt at all that where the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission on no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case.'

14. I also bear in mind the principles established in the common law case of Galbraith (1981) 2 All ER 1060 with regard to the two pronged test applicable in the Magistrates Court i.e.
    
    • Whether there was no evidence in respect of each element of the offence;
    • Whether the evidence was of such a tenuous nature that a jury properly directed could not convict on it.
      
15. When considering the elements of the offence charged they are as follows:
    
    1. The accused (Arun Kumar);
    2. Was unlawfully cultivating;
    3. Cannabis Sativa or Indian Hemp;
    4. An illicit drug.
       
16. When considering the evidence there is no dispute that accused is a farmer and resides at Yasiyasi Tavua. There is no dispute that some plants believed to be illicit drugs were planted in accused garden at Yasiyasi Tavua and were uprooted and seized by police. Pot plants containing plants believed to be illicit drugs were seized from accused garden too. The plants growing from the soil and those growing from the pot plants were taken to Tavua Police Station before it was sent over to Koronivia for analysis. The said plants, pot plants and reports were then returned to Tavua Police Station after tests.
    
17. According to the evidence so far 11 plants were uprooted from accused farm. The number of pot plants seized from accused farm cannot be confirmed by witnesses. It is further undisputed that only 4 plants were produced or exhibited. The remaining 7 plants including the pot plants were not exhibited.
    
18. Notwithstanding the chain of custody as to the alleged exhibits, the issue to resolve is whether there is relevant and admissible evidence establishing that the alleged plants are cannabis sativa an illicit drug.
    
19. On that note it is apparent that no analyst report was adduced as evidence to establish prima facie that the alleged plants seized from accused garden were cannabis sativa an illicit drug according to the Act.
    
20. Further in the absence of any government analyst report it cannot be said that accused was unlawfully cultivating an illicit drug in his garden.
    
21. When assessing the evidence objectively there is a break in the chain of custody of the alleged plants. I say that because PC Kamenieli was not called to testify as he was mentioned as having received the alleged plants at various stages of the investigative process. Also the exhibits according to PC Nasova were handed over to one Wise at Koronivia. This person named Wise was not called to give evidence. I further note that 4 cut plants were tendered as exhibits when evidence shows that 11 plants were uprooted from the garden. Not to mention the number of plants adduced as evidence, no one knows as to how the 4 plants were cut. Moreover no pot plants were adduced as exhibits. All these evidence taken together goes to show that the plants were highly likely to be tampered with and whether they are the same plants seized from accused garden as alleged is highly questionable.
    
22. At a no case to answer stage I bear in mind that the duty of the court is to assess the evidence using the objective as opposed to the subjective test. That means that witness credibility, reliability and weight to be placed on material evidence is not a matter to be considered at this stage. The court will only consider these matters once all the evidence, both for prosecution and the defence are adduced before the court.
    
23. That being the position, when considering the evidence of prosecution at its highest, the Court is of the opinion that on the evidence so far adduced, a reasonable tribunal could not convict.
    

Conclusion

24. On the basis of the evidence so far adduced by prosecution, the court finds that there is no case to answer for the accused.
    
25. Therefore accused should not be put to his defence.
    
26. Accused is acquitted and to be set at liberty forthwith.
    

Samuela Qica
Resident Magistrate

31st March 2014